MAARTENSZ J.—Wijeygoonewardene v. De Silva.
1938Present: Maartensz and Moseley JJ.
WIJEYGOONEWARDENE v. DE SILVA.
40—D. C. Kandy, 48,132.
Public stand for omnibus—No right of way or user to public—Not a road orstreet—Motor Car Ordinance, No. 20 of 1927.
The public are not entitled to a right of way or user over a public standprovided for omnibuses under the regulations issued under the MotorCar Ordinance.
PPEAL from a judgment of the District Judge of Kandy. The factsare fully stated in the judgment.
N. Nadarajah (with him S. W. Jayasuriya and U. A. Jayasundere), fordefendant, appellant.^
N. E. Weerasooria. (with him E. B. Wikramanayake), for plaintiff,respondent.
Cur. adv. vult.
May 10, 1938. Maartensz J.—
The defendant appeals from a decree of the District Court of Kandy(1) declaring the plaintiffs entitled to the right of approach and access totheir premises from the Railway Approach road and from their premisesto the Railway Approach road ; (2) ordering the defendant to demolishthe house marked No. 2 depicted in the plan X filed of record' in the case(3) ordering the defendant to pay the plaintiffs damages at the rate of'Rs. 50 per mensem “ till the abatement of the nuisance by the removal ofthe house No. 2 ” and costs.
The following is a short narrative of the events which led to the action :—
The first plaintiff was and still is the owner of premises bearing assess-ment Nos. 113-121, Peradeniya road, Kandy. By a notice datedDecember 21, 1934, he informed the Municipal Council of Kandy (here-after referred to as the Council) that he intended to erect certain buildingson the premises Nos 113-121. These buildings were not erected.
SOMAARTENSZ J.—Wijeygoonewardene v. De Silva.
A second notice dated March 13, 1935, was given by the first plaintiffto the Council of his intention to build a workshop and showroom inpremises Nos. 113-121,' Peradeniya road. The words “ Peradeniya road ”have been struck off and “Railway Approach road” substituted. Howas granted leave to erect the workshop and showroom in premisesNos. 113-121 by the order dated June 5, 1935 (P 4) subject to the condi-tions stated in the order. One of the conditions was as follows : “ (4) Theproposed access from Peradeniya road must be cleared by dismantlingthe unauthorized roof of cattle gala ”.
The Council had inquired on March 29, 1935, “What means of accessdo you intend providing from Peradeniya road ? ” (P 7).
The first plaintiff in reply wrote letter D 6 annexing “ a plan of theaccess road I intend providing from Peradeniya road ”.
At this time the land marked “ Bus Park ” in plan X was land ownedby the Council which the first plaintiff had no right to enter. The letterP 7, the letter D 6 and condition 4, on which sanction was granted to thefirst plaintiff to put up a showroom, indicate to my mind that the firstplaintiff intended that access to the building should be from Peradeniyaroad and I do not think I can accept Mrs. Wijegoonewardene’s evidencethat she and the first plaintiff had the idea of erecting the building inanticipation of the piece of land belonging to the Council being declareda stand for hiring cars. This evidence is also inconsistent with herevidence that originally it was intended to construct the building tenfeet from th,e boundary between the first plaintiff’s premises and the landbelonging to. the Council.
The building which was completed in August, 1936, is so close to theboundary that it encroaches slightly on the land belonging to the buspark. See P 12.
Mrs. Wijeygoonewardene stated that the site was altered owing to alandslip and that the Assistant Municipal Engineer had advised her andthe first plaintiff as to what should be done after the landslip.
If the first plaintiff had constructed his building ten feet from theboundary he would have had less reason for complaint in this action.
By a notification in the Government Gazette No. 8,160 of October 25,1935 (P 27) , the Municipal land marked bus park was declared “ a standfor hiring cars within the Municipality of Kandy ”, The north-westernboundary is described as “ premises Nos. 113, 113a, 114 to 121, Pera-deniya road, and. drain ”. There is a pavement round the park. Betweenthe pavement on the north-west and the first plaintiff’s premises therewas a triangular bit of land which, with the sanction of the Governorgranted in terms of section 153 (1) of’the Municipal Councils Ordinance,1910 (P 29) was leased to the defendant. The defendant by a noticedated July 17, 1936 (P 33) informed the Council of his intention to erecta boutique on that bit of land.
The Chairman’s minute on the application included the words “ I wasrather troubled as • to the proximity of the existing boutique to thosewhich it is proposed to erect in the above stand” (see D 12). Permissionwas however granted and the defendant commenced building, and
MAARTENSZ J.—Wijeygoonewardene v. De Silva.
completed the building in December, 1936, in spite of the plaintiff’s writtenprotest dated November 13, 1936, and the filing of this action on Novem-ber 14, 1936.
The cause of action in the original plaint was that the erection of thedefendant’s building will deprive the plaintiffs of free light and air andfree prospect and will deny to plaintiffs the common law right of nothaving their house darkened, the view affected and the approachobstructed. The plaintiffs prayed “that they be declared entitled toservitus altius non tollendi and the servitus luminibus officiendi aut pros-pectus, for a notice on the defendant to show cause why he should not berestrained from continuing the said building, for the demolition of thesame so far as such building or parts of it that affect the plaintiffs’ saidrights; for continuing damages at Rs. 10 per diem ”.
The defendant in his answer pleaded the lease from the Council and.denied the plaintiff’s right to the servitudes claimed.
The plaintiffs then filed an amended plaint in which they alleged thatthe parcel of land on which the defendant had built “ forms the bus parkand is a street or road as defined under Ordinance No. 6 of 1910, andOrdinance No. 10 of 1861, with a right of access to the plaintiffs from theirland and house ”.
The prayer was amended by the addition of a prayer for a declarationthat the plaintiffs are entitled to the rights of approach and access. Theclaim to the servitudes prayed for was abandoned at the trial ; and theonly questions we have to decide in appeal are (1) whether the plaintiffsare entitled in law to free access to and from the bus park—the answerto this question depends on whether the bus park is a public street orroad ; (2) if the plaintiff have the right of access claimed, have theysuffered any damages by reason of the building erected by the defendant.The issues relevant to the questions which fall for decision are : —•
“ (1) Is the piece of land, on which the defendant has built a house, astreet or road, within the meaning of Ordinance No. 6 of 1910, and No. 10of 1861? ”
n~(2) If so, had the plaintiffs a right of access over this piece of land tothe plaintiffs’ house and premises ?
“ (5) What damages has the plaintiff sustained ? ”
“ (10) (Instead of 2) Have the plaintiffs a right of access from their landand house to the said piece of land (on which the defendant has built ahouse) and from the bare piece of land to their house as alleged bythem ? ”
“ (11) Has the erection of the building by the defendant prevented theplaintiffs from having access to and from their building to the bare pieceof land, and from it to the road ? ”
“ (12) Have the plaintiffs a right of free light, air and free prospect fortheir building over the premises occupied by the defendant ? ”
Issues 10, 11 and 12 were suggested by defendant’s Counsel instead ofissue 2 suggested by the plaintiffs’ Counsel, but the District Judge framedthem all. There were a number of other issues'which really did not ariseregarding the defendant’s right to construct the building by virtue of his-lease from the Council.
'62MAARTENSZ J.—Wijeygoonewardene v. De Silva.
The District Judge observes in his judgment that “ the dispute betweenthe parties to this action resolves itself into two matters. (1) Nuisancecaused by an obstructive building; and (2) right of access from ahighway
The District Judge held that the defendant’s house was a nuisance as itimpeded the free flow of light and air into the plaintiffs’ house and was,owing to its situation, a source of annoyance. But those reasons wouldnot constitute the house an actionable nuisance unless it violated theplaintiffs’ legal rights. The right of servitude having been abandoned,the only right left is the right of access to and from the bus stand.
The plaintiffs could only have such a right if the bus stand was a publicstreet or road or place.
The District Judge has held that the essential elements in all thedefinitions of a highway, street or road is the right of tl?e public or partof the public to have access to some space and use it as a thoroughfare^and that a bus stand therefore came within the category of a highway orstreet.
The phrase—the right of the public or part of the public to have accessto some space—is contained in the definition of a “ highway ” in theMotor Car Ordinance of 1927, which is as follows : —“ ‘ Highway ’ includesevery place over which the public have a right of way, or to which thepublic or any part of the public are granted access, and every place wherethe motor traffic thereon is regulated by a Police Officer ”.
The respondent’s Counsel relied very strongly on this definition insupport of his contention that the bus stand was a highway. In myjudgment a highway has been given an extended meaning for thepurpose of making the Ordinance .in certain circumstances applicableto places which are not highways over which the public have a rightof way.
The definitions of the terms “ Road ” in the Road Ordinance, No. 10 of1861, and “ Street ” in the Municipal Councils Ordinance, No. 6 of 1910,include places other than a road or street in the ordinary meanings ofthose terms. The fact that the piece of land declared as a bus standanswers to the description of those places—I do not think it does—doesnot constitute it a road or a street unless the public have a right of way■over it or a right to use it.
Public roads in Ceylon, the term road being used in- its ordinarymeaning, are those which have existed from time immemorial or whichhave from time to time been constructed on land belonging to the Crownor acquired for the purpose and thereafter used by the public as a meansof communication, Fernando v Senerat V The bus stand is certainly nota public road in this sense as it has not existed as a road from timeimmemorial or constructed for a means of communication.
To constitute a parcel of land, & road or street in any other sense it must,
.1 take it, have been used as such from time immemorial or constructed forthat purpose under section 9 of the Road Ordinance, No. 10 of 1861, which-enacts that it shall be lawful for “ the Governor and (Executive) Council .
i (1932) 33 N. L. X. 346.
MAARTENSZ J.—Wijeygoonewardene v. De Silva.
to order any new road to be opened ” or under section 149 (1) of theMunicipal Councils Ordinance which enacts that “ subject to the provi-sions of this Ordinance, the Council, with the sanction of the Governor inExecutive Council, may lay out, construct and make new streets
The piece of land in question was clearly not used as a road or street inany other sense from time immemorial, nor was it opened, laid out orconstructed under section 9 of the Road Ordinance or under section 149'of the Municipal Councils Ordinance. The public have therefore no rightof way over it or a right to use it.
It was contended however that it became available »to the publicbecause it was declared a public stand by a notification in the Government ■Gazette of October 25, 1935 (P 27). I do not think this contention issound. It seems to me to confuse a public stand which is part of ahighway and a public stand which is not part of a highway.
Rule 2 of Part 1 of the Fourth Schedule of the Motor Car Ordinance,No. 20 of 1927, provides that “ no omnibus shall be allowed to stand onany highway, except—
On a public stand or stopping place indicated as such by a noticeexhibited by the licensing authority .. ..”.
This rule contemplated a part of the highway being used as a publicstand or stopping place ; but the fact that a place which is not part of thehighway is declared a public stand will not make it part of a road or street.Hence the notification in the Gazette of October 25, 1935, did not makethe area of land within the boundaries set out a part of the RailwayApproach road.
Moreover, the rules D 25, D 26, and D 34 regulating the establishmentand, use of public stands clearly negative the plaintiffs’ contention that,the piece of land became available to the public.
Rule 3 limits the use of public stands to hiring cars holding writtenpermits to use them. A fee is payable for the permits.
Rule 4 makes a breach of rule 3 an offence.
The rule in exhibit D 26 excludes cars other than hiring cars from standsprovided for hiring cars.
Rule 8—exhibit D 34—excludes from a public stand all persons except—
the driver, conductor or owner of an omnibus or motor cab parked
at the stand,
a person engaged in repairing an omnibus or cab,
a bona fide passenger travelling or intending to travel by any omni–
bus or motor cab in the stand.
The plaintiffs have, while these rules are in force, no rights in the standunless they can come under rule 8.
The plaintiffs do not claim that their right-to enter the stand underrule 8 has been affected by the defendant’s house. Their action therefore-
*4MAARTENSZ J,—Wijeygoonewardene v. De Silva.
fails on the ground that the plaintiffs have not established that they havea right of way over or the right to use the piece of land described as a buspark in plan X.
I think the plaintiffs’ action would have failed in any event on theground that they have not proved their damages. The first plaintiff, byan indenture P 11, dated July 16, 1936, leased the house built by him tothe second plaintiff for a term of three years from September 1, 1936, at arental of Rs. 50 a month. The second plaintiff stopped paying rent afterthe defendant’s house was built, and I think the District Judge assessedthe damages at. Rs. 50 a month on this basis.
The first plaintiff, so far as I can see, is still entitled to his rent from thesecond plaintiff, at least, it has not been proved that he is not, and hecannot claim that he has suffered any damage. The second plaintiff hasnot proved that he has suffered any damage.
The first plaintiff has not given evidence of any damage suffered byhim. His wife said: (a) “The defendant’s building cuts off the view'ofour building up to about three fourths of its height (b) that the buildingwas to serve for the sale of motor accessories and a motor repair shop and:the defendant’s building shut out from view the showroom ; (c) “ myserious complaint is that access to the Railway Approach road and thebus park has been cut off ”.
The plaintiff has. not proved that he has suffered any damagesas the result of the obstruction of the view of the park and the show-room.
No doubt the plaintiff could not in the circumstances prove any actualloss, but the loss beyond the evidence that the second plaintiff refused topay his rent is not estimated.
The complaint that access to the park has been cut off is not wellfounded. If the plaintiff had built his house 10 feet from the boundary,there would have been no necessity to walk along a drain on emergingfrom the front as stated by the Surveyor, Mr. Schokman. As the build-ings stands at present, “ to the west of house (2) for the space of about onechain it is possible to step out from the plaintiff’s land on to the whitespace shown as pavement” (plan X)—I quote from the evidence ofMr. Schokman.
The plaintiff is certainly unfortunate. By the declaration that the.Municipal land was to be a stand for hiring cars, he had reason to hopethat he would find customers for his motor repair shop and motor acces-sories among the drivers, conductors and owners of buses using the stand.I do not suppose he would have complained so much if the defendant had• constructed his building for some other purpose than that of selling motoraccessories. He is certainly better situated to attract customers, but thecustomers can’reach plaintiff’s shop quite easily if they wish to do so.The loss plaintiff is likely to sustain results not from the obstruction tothe road or street but from the presence of a rival trader in a bettersituation. The damage therefore does not flow from the obstruction ifany to the road street—if the bus stand or park is a road or street.As regards plaintiff’s access to the bus stand, there is no estimate of the
FERNANDO A.J.—Avichchy Chettiar v. Perera.
damage resulting from the inconvenience mentioned by the surveyor.As far as I can see, it is so slight as to be incapable of estimation in termsof money.
The appeal must be allowed and plaintiff’s action dismissed with costsin both Courts.
M&eley J.— I agree.
WIJEYGOONEWARDENE v. DE SILVA